from the that's-not-how-any-of-this-works-at-all dept
While there were thousands of comments filed to the FCC in response to the NTIA’s insanely bad “petition” to have the FCC reinterpret Section 230 in response to an unconstitutional executive order from a President who was upset that Twitter fact checked some of his nonsense tweets, perhaps the comment that matters most is the one submitted last week by the two authors of Section 230, Senator Ron Wyden and former Rep. Chris Cox. Cox and Wyden wrote what became Section 230 back in the 90s, and have spent decades fighting misinformation about it — and fighting to keep 230 in place.
In the comment they submitted to the FCC, they respond to all the idiotic nonsense that everyone has been submitting. Again, these are the guys who wrote the actual law. They know what it was intended to do, and agree with how it’s been used to date. So they go on a systematic debunking journey through the nonsense. First, they respond to comments that say that the FCC can interpret 230. Nope.
Several commenters have repeated the claim in the Petition that ?[n]either section 230?s
text, nor any speck of legislative history, suggests any congressional intent to preclude the
Commission?s implementation.? In fact, however, as the authors of the legislation and the floor
managers of the debate on the bill in the House of Representatives, we can assure you the very
opposite is true. We and our colleagues in Congress on both sides of the aisle were emphatic that
we were not creating new regulatory authority for the FCC or any other independent agency or
executive branch department when we enacted Section 230. Not only is this clear from the
legislative history, but it is written on the face of the statute. Unlike other provisions in Title II of
the Communications Act, Section 230 does not invite agency rulemaking. Indeed, in a provision
that judges interpreting the law have noted is ?unusual,? Section 230(b) explicitly provides:
It is the policy of the United States ? to preserve the vibrant
and competitive free market that presently exists for the Internet and other
interactive computer services, unfettered by Federal or State regulation.
When this legislation came to the floor of the House of Representatives for debate on
August 4, 1995, the two of us, together with members on both sides of the aisle, explained that
our purpose was to ensure that the FCC would not have regulatory authority over content on the
internet. We and our colleagues, Democrats and Republicans alike, decried the unwelcome proregulatory
alternative of giving the FCC responsibility for regulating content on the internet,
which at the time was being advanced in separate legislation by Senator James Exon…
The Cox-Wyden bill under consideration was intended as a rebuke to that entire concept.
Then, to prove they’re not engaging in revisionist history, they cite the speeches they themselves gave about how the whole point of their bill was to keep the FCC from regulating the internet. From Wyden’s floor speech at the time:
[T]he reason that this approach rather than the Senate approach is important
is ? the speed at which these technologies are advancing [which will] give
parents the tools they need, while the Federal Communications Commission is out
there cranking out rules about ?proposed rulemaking programs. Their
approach is going to set back the effort to help our families.
Cox’s floor speech was even more direct with the question of whether or not their approach was designed to give the FCC power:
Some have suggested, Mr. Chairman, that we take the Federal
Communications Commission and turn it into the ?Federal Computer
Commission? ? that we hire even more bureaucrats and more regulators
who will attempt, either civilly or criminally, to punish people by catching
them in the act of putting something into cyberspace. Frankly, there is just
too much going on on the Internet for that to be effective….
[This bill] will establish as the policy of the United States that we do not
wish to have content regulation by the Federal Government of what is on
the Internet ?that we do not wish to have a ?Federal Computer
Commission? with an army of bureaucrats regulating the Internet….
The message today should be, from this Congress: we embrace this new
technology, we welcome the opportunity for education and political
discourse that it offers for all of us. We want to help it along this time by
saying Government is going to get out of the way and let parents and
individuals control it rather than Government doing that job for us….
If we regulate the Internet at the FCC, that will freeze or at least slow
down technology. It will threaten the future of the Internet. That is why it
is so important that we not have a ?Federal Computer Commission? do
Next, the comment responds to the claims that 230 is “outdated.” Nope, claim its authors:
Several commenters, including AT&T, assert that Section 230 was conceived as a way to
protect an infant industry, and that it was written with the antiquated internet of the 1990s in
mind ? not the robust, ubiquitous internet we know today. As authors of the statute, we
particularly wish to put this urban legend to rest.
Section 230, originally named the Internet Freedom and Family Empowerment Act, H.R.
1978, was designed to address the obviously growing problem of individual web portals being
overwhelmed with user-created content. This is not a problem the internet will ever grow out of;
as internet usage and content creation continue to grow, the problem grows ever bigger. Far from
wishing to offer protection to an infant industry, our legislative aim was to recognize the sheer
implausibility of requiring each website to monitor all of the user-created content that crossed its
portal each day.
Critics of Section 230 point out the significant differences between the internet of 1996
and today. Those differences, however, are not unanticipated. When we wrote the law, we
believed the internet of the future was going to be a very vibrant and extraordinary opportunity
for people to become educated about innumerable subjects, from health care to technological
innovation to their own fields of employment. So we began with these two propositions: let?s
make sure that every internet user has the opportunity to exercise their First Amendment rights;
and let?s deal with the slime and horrible material on the internet by giving both websites and
their users the tools and the legal protection necessary to take it down.
The march of technology and the profusion of e-commerce business models over the last
two decades represent precisely the kind of progress that Congress in 1996 hoped would follow
from Section 230?s protections for speech on the internet and for the websites that host it. The
increase in user-created content in the years since then is both a desired result of the certainty the
law provides, and further reason that the law is needed more than ever in today?s environment.
Next up: the all too frequent claim that 230 creates a special rule for the internet that is different than for brick and mortar stores, and therefore there’s a “double standard.” Again, nope.
Several commenters have asserted that Section 230 sets up a ?double standard? by
treating online businesses differently from ?brick-and-mortar? businesses. This represents a
fundamental misunderstanding of both the purpose of the law and how it operates in practice.
Section 230 serves to punish the guilty and protect the innocent. Individuals and firms are
made fully responsible for their own conduct. Anyone who creates digital content and uploads it
to a website is legally liable for what they have done. A website that hosts the content will
likewise be liable, if it contributes to the creation or development of that content, in whole or in
part. Otherwise, the website will be protected from liability for third-party content.
Section 230 was written to adapt intermediary liability rules long recognized in the
analog world for the digital world, applying the wisdom accumulated over decades in legislatures
and the courts to the realities of this new technological realm. As authors of the law, we
understood what was evident in 1996 and is even more in evidence today: it would be
unreasonable for the law to impose on websites a legal duty to monitor all user-created content.
When Section 230 was written, just as now, each of the commercial applications
flourishing online had an analog in the offline world, where each had its own attendant legal
responsibilities. Newspapers could be liable for defamation. Banks and brokers could be held
responsible for failing to know their customers. Advertisers were responsible under the Federal
Trade Commission Act and state consumer laws for ensuring their content was not deceptive and
unfair. Merchandisers could be held liable for negligence and breach of warranty, and in some
cases even subject to strict liability for defective products. In writing Section 230, we?and
ultimately the entire Congress?decided that these legal rules should continue to apply on the
internet just as in the offline world. Every business, whether operating through its online facility
or through a brick-and-mortar facility, would continue to be responsible for all of its legal
What Section 230 added to the general body of law was the principle that individuals or
an entity operating a website should not, in addition to their own legal responsibilities, be
required to monitor all of the content created by third parties and thereby become derivatively
liable for the illegal acts of others. Congress recognized that to require otherwise would
jeopardize the quintessential function of the internet: permitting millions of people around the
world to communicate simultaneously and instantaneously, a unique capability that has made the
internet ?the shining star of the Information Age.? Congress wished to ?embrace? and
?welcome? this, not only for its commercial potential but also for ?the opportunity for education
and political discourse that it offers for all of us.? The result is that websites are protected from
liability for user-created content, but only to a point: if they are responsible, even in part, for the
creation or development of that content, they lose that protection.
The fact that Section 230 established the legal framework for assessing liability in
circumstances unique to the internet does not mean that either this framework or the preexisting
legal rules do not apply equally to all online and offline businesses. Every business continues to
bear the same legal responsibilities when operating in the offline world, and every business is
bound by the same statutorily-defined responsibilities set out in Section 230 when operating in
the e-commerce realm.
Then there’s the question about whether or not the FCC can mandate disclosure and reporting requirements. As Cox and Wyden note, this argument — pushed strongly by AT&T and the NTIA “borders on the absurd.”
The Petition asks the FCC to interpret Section 230 as if it contained explicit requirements
mandating terms of service, content moderation policies, due process notice and hearings in
which content creators could dispute moderation decisions, and public disclosures concerning
these and other matters. The Petition further asks that the FCC impose these specific
requirements by rule. Multiple commenters, including AT&T, have endorsed this aspect of the
The Petition clearly states NTIA?s understanding that Congress, with ?strong bi-partisan
support,? intended Section 230 to be ?a non-regulatory approach.? In this they are correct. As
outlined in Section II above, the legislative history clearly demonstrates that we and our
colleagues in Congress intended to keep the FCC and other regulators out of this area. This is
reflected in the language of Section 230 itself. Both of us, as the authors of the legislation, made
ourselves abundantly clear on this point when the law was being debated.
This fact?and NTIA?s admission of it?makes it all the more illogical for their Petition
to ask the Commission to interpret Section 230 as statutory authorization for the FCC to regulate
the very subjects that Section 230 itself covers, and which Congress wanted the Commission to
stay out of. It surpasses illogic, and borders on the absurd, for the Petition to ask the FCC to use
authority that Section 230 clearly does not grant it, in order to divine from the text of the statute
explicit duties and burdens on websites that Section 230 itself clearly does not impose.
As Cox and Wyden note, any such interpretation would clearly require new legislation and could not be created, whole cloth, from the mind of an angry President and clueless NTIA staffers with grudges about Section 230.
All of this would require new federal legislation. None of it appears in Section 230,
either in the text of the law that we can all read (and that the two of us wrote), or even in the
invisible ink which NTIA must believe only it can read.
I get the feeling that Cox and Wyden do not think highly of the NTIA petition.
As for those who commented suggesting that the FCC could interpret Section 230 to include a “negligence” standard, again, this is not how any of this works:
Several commenters, including Digital Frontiers Advocacy, have urged grafting onto
Section 230 a requirement, derived from negligence law, upon which existing protections for
content moderation would be conditioned. These requirements would add to Section 230 a ?duty
of care? or a ?reasonableness? standard that cannot be found in the statute. As one example, the
Petition (which is generically endorsed in its entirety by many individual commenters) would
have the FCC require that content moderation decisions be ?objectively reasonable,? as
compared to the clear language of Section 230, which provides that the decision is to be that of
?the provider or user.?
As the authors of this law, and leading participants in the legislative process that led to its
enactment in 1996, we can assure the Commission that the reason you do not see any such
requirement on the face of the statute is that we did not intend to put one there.
The proposed introduction of subjective negligence concepts would effectively make
every complaint concerning a website?s content moderation into a question of fact. Since such
factual disputes can only be resolved after evidentiary discovery (depositions of witnesses,
written interrogatories, subpoenas of documents, and so forth), no longer could a website prove
itself eligible for dismissal of a case at an early stage.
We intended to spare websites the death from a thousand paper cuts that would be the
result if every user, merely by filing a complaint about a content moderation decision, could set
in motion a multi-year lawsuit. We therefore wrote Section 230 with an objective standard: was
the allegedly illegal material created or developed?in whole or in part?by the website itself? If
the complaint adequately alleges this, then a lawsuit seeking to hold the website liable as a
publisher of the material can proceed; otherwise it cannot.
And if you think Cox and Wyden are done exploring just how absurdly stupid this process has been, you haven’t prepared yourself for the next section, in which they respond to the many ridiculous comments suggesting 230 enables the FCC to enforce “neutrality” on internet websites:
The Claremont Institute and scores of individual commenters have complained that
particular websites are not politically neutral, and they demand that Section 230?s protection
from liability for content created by others be conditioned on proof that a website is in fact
politically neutral in the content that it hosts, and in its moderation decisions.
There are three points that must be made in reply. The first is that Section 230 does not
require political neutrality. Claiming to ?interpret? Section 230 to require political neutrality, or
to condition its Good Samaritan protections on political neutrality, would erase the law we wrote
and substitute a completely different one, with opposite effect. The second is that any
governmental attempt to enforce political neutrality on websites would be hopelessly subjective,
complicated, burdensome, and unworkable. The third is that any such legislation or regulation
intended to override a website?s moderation decisions would amount to compelling speech, in
violation of the First Amendment….
They respond to every idiot who misinterprets the line in the Findings part of Section 230 about “diversity of political discourse” by saying “we meant lots of different sites, not that every site has to host all your nonsense.”
Section 230 itself states the congressional purpose of ensuring that the internet remains ?a
global forum for a true diversity of political discourse.? In our view as the law?s authors, this
requires that government allow a thousand flowers to bloom?not that a single website has to
represent every conceivable point of view. The reason that Section 230 does not require political
neutrality, and was never intended to do so, is that it would enforce homogeneity: every website
would have the same ?neutral? point of view. This is the opposite of true diversity.
To use an obvious example, neither the Democratic National Committee nor the
Republican National Committee websites would pass a political neutrality test. Government compelled
speech is not the way to ensure diverse viewpoints. Permitting websites to choose
their own viewpoints is.
And then there’s that comment that was popular among individual filers (and lots of idiots on Twitter) that because Section 230 allows websites to take down lawful speech, that’s somehow a violation of the 1st Amendment. We’ve discussed many, many, many times how ridiculous that is, but why don’t we hear it from Wyden and Cox:
Many individual commenters complained that their political viewpoints have been
?censored? by websites ostensibly implementing their community guidelines, but actually
suppressing speech. Several of these commenters have urged the FCC to require that all speech
protected by the First Amendment be allowed on any site of sufficient size that it might be
deemed an equivalent to the ?public square.? In the context of this proceeding, that would mean
Section 230 would somehow have to be ?interpreted? to require this.
Comments within this genre share a fundamental misunderstanding of Section 230. The
matter is readily clarified by reference to the plain language of the statute. The law provides that
a website can moderate content ?whether or not such material is constitutionally protected.?… Congress would have to repeal this language, and replace it with an explicit speech mandate, in
order for the FCC to do what the commenters are urging.
Government-compelled speech, however, would be a source of further problems.
Because the First Amendment not only protects expression but non-expression, any attempt to
devise an FCC regulation that forces a website to publish content it otherwise would moderate
would almost certainly be unconstitutional. The government may not force websites to publish
material that they do not approve. As Chief Justice Roberts unequivocally put it in Rumsfeld v.
Forum for Academic and Institutional Rights (2006), ?freedom of speech prohibits the
government from telling people what they must say.?…
And then they point out that many commenters don’t seem to understand the 1st Amendment:
The answer to the commenters? complaints of ?censorship? must be twofold. First, many
of the comments conflate their frustrations about Section 230 with the First Amendment. As
noted, it is the First Amendment, not Section 230, that gives websites the right to choose which
viewpoints, if any, to advance. Furthermore, First Amendment speech protections dictate that
the government, with a few notable exceptions, may not dictate what speech is acceptable. The
First Amendment places no such restrictions on private individuals or companies. Second, the
purpose and effect of Section 230 is to make the internet safe for innovation and individual free
speech. Without Section 230, complaints about ?censorship? by the likes of Google, Facebook,
and Twitter would not disappear. Instead, we would be facing a thousandfold more complaints
that neither the largest online platforms nor the smallest websites are any longer willing to host
material from individual content creators.
And changing Section 230 in the manner these commenters seek wouldn’t actually help them:
Eroding the law through regulatory revision would seriously jeopardize free speech for
everyone. It would be particularly injurious to marginalized viewpoints that aren?t within ?the
mainstream.? It would present near-insuperable barriers for new entrants attempting to compete
with entrenched tech giants in the social media space. Not least of all, it would set a terrible
example for the rest of the world if the United States, which created the internet and so much of
the vast cyber ecosystem that has enabled it to flourish globally as an informational, cultural,
scientific, educational, and economic resource, were to undermine the ability that hundreds of
millions of individuals have each day to contribute their content to that result.
In the absence of Section 230, the First Amendment rights of Americans, and the internet
as we know it, would shrivel. Far from authorizing censorship, the law provides the legal
certainty and protection from open-ended liability that permits websites large and small to host
the free expression of individuals, making it available to a worldwide audience. Section 230 is a
bulwark of free speech and civil discourse that is more important now than ever, especially in the
current political climate that is increasingly hostile to both.
In short, so many of these commenters are confused about the law, the history, the technology, how free speech works, how the internet works, and more. That much of this is also true of the NTIA petition itself is a shame.
The Cox and Wyden comment concludes by underlining the fact that they wrote 230 with the explicit intent of keeping the FCC away from regulating internet websites.
On one point we can speak ex cathedra, as it were: our intent in writing this law was to
keep the FCC out of the business of regulating websites, content moderation policies, and the
content of speech on the internet. The Petition asks the Commission to reverse more than two
decades of its own policy by becoming, at this late stage in the life of Section 230, its regulatory
interpreter. In so doing, the FCC would assume responsibility for regulating websites, content
moderation policies, and the content of speech on the internet?precisely the result we intended
Section 230 to prevent. To reach this perverse result, the FCC would ?clarify? the words of
Section 230 in ways that do violence to the plain meaning of the statutory text.
One would hope that such a detailed response from the authors of the law would put this whole nonsense to rest. But it won’t.
Filed Under: cda 230, chris cox, fcc, intermediary liability, ntia, ron wyden